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24 migrant children under age 5 remain separated from their parents, new court filing says

Under U.S. District Court instructions, the U.S. government has provided its most comprehensive numbers yet on family separations at the border.

As a result of the “zero tolerance” policy that the Trump administration rolled out earlier this year, U.S. immigration officials separated more than 2,600 migrant children from their families. And since a June executive order halted the practice and the American Civil Liberties Union sued the government over the separations, the federal government has been under court-imposed deadlines to reunify the thousands of families affected by the action.

In a hearing Friday, the ACLU pointed to some of the difficulties of reaching hundreds of parents who are no longer in the U.S. and separated from their children.

ACLU’s Lee Gelernt, who has been at these weekly court updates, said that officials so far have called about 120 people, but reached fewer than 50 of the intended migrant parents. He said that phone numbers “may be inoperative or some people may be in hiding.”

Gelernt also said the parents that were reached made it clear that they’d like to be reunified in their home country.

At the heart of Friday’s hearing was the question of whether this next wave of reunifications would occur in families’ home countries or in the U.S.

Here’s what a Thursday joint court filing said about the current status of the reunification effort and what we can expect next in the process.

What are the latest numbers?

For several weeks now, the lawsuit over family separations has been playing out of a federal court in San Diego. Every week, the ACLU has pressed the government to provide more transparency and more data into the family reunification process. U.S. District Judge Dana Sabraw has agreed, ordering the government to provide information.

On Thursday, the U.S. included its most detailed data yet — a table with more specific categories — in the status report.

Of the total 2,654 separated migrant children in government custody, age 0 to 17, 2,089 have been “discharged.” That means the children were either reunified with their parents or were placed with government-approved sponsors within the U.S., among other circumstances.

For those who remain in government custody, under the care of the Office of Refugee Resettlement, or ORR, which is overseen by the Department of Health and Human Services, here are the latest numbers:

The total number of children that remain in government custody: 565. Of those, 24 children are under age 5. Here’s how the U.S. further breaks down those numbers:

  • 366 adults are currently outside the U.S. These are parents who have already been deported by immigration officials or left the U.S. voluntarily.
  • 154 parents “indicated desire against reunification.”
  • 83 reunification cases were “prevented or potentially affected by separate litigation.”
  • 46 children are under ORR care, upon further review that showed that they weren’t separated from their parents by the Department of Homeland Security officials.
  • 37 adults had a “red flag” in other case reviews.
  • 36 adults had a “red flag” in their background checks.
  • 19 adults are in federal, state or local custody.
  • The locations for 10 adults are under case file review.
  • 9 adults were released to the U.S. interior.

The report cautions that the additional numbers may not add to the 565 total in government custody because there may be overlap with some of the adults. One adult, for example, could have a “red flag” on their background check and had also waived their right to reunification with their child, the U.S. said.

The U.S. also said it needed additional time to provide more information on the parents who waived their right to reunify with their children, specifically for the young migrants who are no longer under the government’s care. This is also because the government said it wants to place priority on the children that are still under its care. It remains to be seen if Judge Sabraw grants the U.S. the extended deadline.

What’s the plan now?

On Friday, Judge Sabraw said that it was important to note that the continued effort to reunify separated parents with their children “will not be a perfect process” and is an enormous undertaking that is of the government’s own making. He also stressed the importance of reunifying families as efficiently as possible.

ACLU lawyers and the organization’s network of volunteers and other resources have been helping the U.S. government reunite these families. In an earlier phase of the effort, both parties worked to reunite more than 1,600 families at select U.S. Immigration Customs and Enforcement facilities.

Now, among the children who remain in U.S. custody, the largest group is comprised of the 366 whose parents are no longer in the U.S. The government filed its latest plan in court that shows how it expects to reunify these adults with their children.

On Friday, Judge Sabraw said the joint plan “looks excellent.”

As in prior plans, there’s a review process at the beginning that determines whether there are any doubts to parentage or a child’s safety. If not, officials will then work with the U.S. embassies in each of the countries to which parents were removed, to help find contact information for these parents.

The State Department is expected to provide daily updates on parents’ contact information to HHS, among other actions:

  • A hotline phone number will be established on U.S. Embassy websites that will provide contact information to ACLU representatives.
  • The State Department will also work with the countries of origin, or COOs, to disseminate this information in other ways. This outreach includes asking COOs to post notices, ads and billboards, hoping to attract the attentions of the removed parents.

From there, the ACLU will help determine if the removed parents wish to waive their rights to reunify with their children. It should be noted that ACLU filed several testimonies weeks ago from separated parents who said they felt they were pressured by immigration officials to sign forms that waived their reunification rights in a “coercive and misleading manner.” As detailed in personal declarations by the parents, language barriers, truncated time with lawyers or other representatives, and distrust of U.S. officials, meant that migrant parents may not have known what was actually happening when signing documents concerning their reunification rights. ACLU argued at the time that some parents “in fact do want their kids back.”

From there, if removed parents still wish to reunify with their children, the U.S. will provide transportation for the young migrants to their countries of origin where they will finally be reunited.

ACLU, however, argued in a separate filing that “some separated families can only be made whole by returning the parent to the United States.”

The organization said that, in some cases, “removed parents may not have availed themselves of their right to seek asylum because they were misled or coerced into believing that asserting their asylum claim would delay or preclude reunification.”

What’s next?

Judge Sabraw on Friday advised both parties to confer and reach solutions on how to continue this next phase of family reunification. The judge appeared to lean toward the government’s argument that reunifications occur in families’ home countries, but he’d like both parties to come up with proposals on how to move forward.

California lawmakers ask for an apology.

On a final note, California state senators passed a resolution Thursday requesting that President Donald Trump and Congress accept responsibility for the practice of separating migrant families at the southwest border, KPBS reported.

The resolution also calls for Congress to issue a formal apology to the affected migrant children. It’s doubtful, however, that the Trump administration will oblige the state senators’ resolution.

READ MORE: Trump administration was warned of ‘traumatic psychological injury’ from family separations, official says